Steinmetz v. Saathoff

• Decision Date: 13 May 1935
• Parties: STEINMETZ v. SAATHOFF et al.
• Court: Kansas Court of Appeals

84 S.W.2d 437

STEINMETZ v. SAATHOFF et al.

Court of Appeals of Missouri, Kansas City

May 13, 1935

Rehearing Denied June 24, 1935.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

“ Not to be published in State Reports.”

Suit by Eva K. Steinmetz against Ralph Saathoff and Tobin Quarries, Inc. From a judgment for plaintiff, defendants separately appealed, and the appeals were heard together.

Judgment against Tobin Quarries, Inc., affirmed.

See also, 84 S.W.2d 434.

Roy W. Crimm, of Kansas City, for Tobin Quarries, Inc.

Bagby & Burton, of Fayette, and Roy D. Williams and W. W. Carpenter, Jr., both of Boonville, for respondent.

OPINION

TRIMBLE, Judge.

The appeal of the defendant Tobin Quarries, Inc., involves facts in all respects, the same as those of its codefendant, Saathoff, in respect to the negligent facts involved in the death of plaintiff’s husband. The only different questions that can be involved as to the liability of this defendant is whether or not Saathoff was, at the time of the killing of deceased, in the course of his employment for this defendant, so that this defendant could legally be held liable for the negligent act of its employee Saathoff.

There is no question but that Saathoff was in the employ of the defendant Tobin Quarries. But the defendant contends that, at the time of the killing of deceased, he was not in the course of his employment, but upon a matter of his own business. Of course, if it should be said as a matter of law, or that, conclusively, he was not in the course of his employment, then the Tobin Quarries, Inc., would not and could not be held liable. But if the evidence is such that the jury can rightfully find that Saathoff was in fact engaged in the work of his employer, then that defendant is also liable; and in such event the judgment against this defendant should also be affirmed.

If the wrongful death was caused by the driver of the automobile, then even though the driver owned the automobile, yet, if at the time the automobile was being used, or after being repaired it was being brought back for use in the employer’s business, with his knowledge and consent, such employer is liable. Or. if the evidence is such that the jury can rightfully find such to be the fact, and the jury does so find, then the employer is to be held liable. Margulis v. National Enameling, etc., Co., 324 Mo. 420, 23 S.W.2d 1049; Burgess v. Garvin, 219 Mo.App. 162, 272 S.W. 108; Gordner v. St. Louis Screw Co., 201 Mo.App. 349, 210 S.W. 930. And if the employee is, at the time of the causing of the death, engaged in procuring the car after being fixed, so that it can be used in the business of his employer, that is an act of the servant within the scope of his employment, so that the master can be held liable for the servant’s negligence. Burgess v. Garvin, supra; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601.

The evidence, even from Saathoff, introduced by plaintiff, is that the car, while owned by him, was used in connection with his duties for his employer and the employer furnished the gasoline and oil; that he was using the company gas to take the car for repairs over to Glasgow...